Excerpt:.....47 (1) of motor vehicles act, 1939 - consideration of experience gained by medium operator in short route for purpose of granting pucca permit - experience so gained by virtue of temporary permit has to be considered - short route permit ordinarily to be given to new entrants except under compelling situation.
- - there may be a new entrant who has some operational experience but has no sector qualification or the like. there may be a new entrant who has operational experience (by way of operation on the basis of temporary permit) as well as sector qualification. in deciding what would be in the interests of the public, generally two of the factors that may arise for consideration are, firstly, experience in operating the service, and secondly, better facilities for the..........that the experience gained by a medium operator by virtue of temporary permit in regard to a short route will not be a relevant qualification when the contest is between him and a new entrant. the petitioner has no grievance about the remand. his grievance is about this observation of the tribunal, which according to him, is an incorrect one.2. in paragraph 7 of the impugned judgment, the tribunal observed as follows :'despite the route being short, medium operators are also entitled to compete with new entrants for the permit. but it appears such competition could be permitted onlyafter the medium operators are stripped of their superior qualifications based on technical experience and sector experience and put on a par with new entrants in other respects. in other words, a medium.....

Judgment:ORDER

U.L. Bhat, J.

1. This original petition filed under Article 226 of the Constitution of India is directed against Ext. P12 judgment dated 31-3-1984 of the S.T.A.T. in M.V.A.A. Nos. 279/83 and 280/83. In this judgment the S.T.A.T. set aside Ext. P2 order dated 23-6-1983 of the first respondent, the R.T.A., Kottayam, under which the petitioner herein (4th applicant) was ordered to be issued pucca permit in respect of the disputed route, in preference to all other applicants including respondents 3 and 4 herein (5th and first applicants respectively) and remanded the matter for fresh consideration by the R.T.A. In doing so, the Tribunal observed that the experience gained by a medium operator by virtue of temporary permit in regard to a short route will not be a relevant qualification when the contest is between him and a new entrant. The petitioner has no grievance about the remand. His grievance is about this observation of the Tribunal, which according to him, is an incorrect one.

2. In Paragraph 7 of the impugned judgment, the Tribunal observed as follows :

'Despite the route being short, medium operators are also entitled to compete with new entrants for the permit. But it appears such competition could be permitted onlyafter the medium operators are stripped of their superior qualifications based on technical experience and sector experience and put on a par with new entrants in other respects. In other words, a medium operator should not be allowed to have an edge over a new entrant by reason of his status and acquired qualification. After this preliminary elimination of points which give a medium operator an edge, the application should be considered on their merits subject to the consideration of the provisions of Section 47(1) and Rule 177-A. This was not done in this case. It appears that the third respondent was preferred only because he had operational experience on the route. Such experience was irrelevant and should not have weighed with the R.T.A. It was not a qualification with which he should have been permitted to defeat the appellant's claim as new entrant. Indeed, if the experience of the 3rd respondent was left out of consideration, he did not have an edge over the appellants in other respects so as to entitle him to get the permit. I am of the view that the order is unsustainable for the reasons above stated and hence it is set aside. Applications are remitted for reconsideration and fresh disposal on merits. Till that is done, the existing arrangement will continue.'

3. The matter is one arising under Section 47(1) of the Motor Vehicles Act and Rule 177-A of the Motor Vehicles Rules, Section 47(1) enumerates the matters which have to be taken into account in considering an application for a permit. These are the interests of the public generally, the advantages to the public of the service to be provided, the adequacy of other passenger transport services operating or likely to operate in the near future, the publication of a scheme under Section 68C in respect of service of stage carriages, the benefit to any particular locality or localities likely to be afforded by the service, the operation by the applicant of other transport services, including those in respect, of which applications from him for permits are pending (this is clause (c)) and the condition of the roads included in the proposed route or area.

4. Rule 177-A explains the guiding principles in the matter of grant of stage carriage permits etc. Routes are classified as short routes, medium routes and long routes. Sub-rule (2) states that other conditions being equal, an application for a stage carriagepermit from the K.S.R.T.C. or from a Cooperative Society, shall, as far as may be, be given the first and second preference respectively and an application from a displaced operator shall be given a third preference over other applications. Sub-rule (3) states that subject to Sub-rule (2), other things being equal, preference may be given to new entrants for short routes and to applicants with 1 to 4 stage carriages for medium routes. There are further Clauses (i) to (iii) mentioning the financial instability, trafficking in permits and lack of workshop facilities etc. the last Sub-clause being not applicable to the case of an applicant for a permit for a short route. Sub-clause (4) states that after eliminating the applicants in the manner laid down in Sub-rule (3) marks will be awarded. 'A' relates to sector or residential qualification, the details of which are unnecessary for the purpose of this case. It is sufficient to say that Clauses (i) and (ii) under 'sector or residential qualification' are declared to be not applicable to an application for permit for a short route. 'B' relates to business or technical experience in the field of stage carriage operation. Here again it is declared that Clauses (i) and (ii) shall not apply to an application for permit for a short route.

5. Thus we can see that there are several considerations to be borne in mind by the statutory authority in deciding on the grant of a permit as enumerated in Section 47(1) and further elaborated in Rule 177-A. One of the factors to be taken note of under Section 47(1) is the operation by the applicant of other transport services, including those in respect of which applications from him for permit are pending. This may take in experience gained by an applicant in regard to the specific route or other routes by way of temporary permits or otherwise. Under heading 'B' of Sub-rule (4) of Rule 177-A, marks have to be awarded depending on the experience of an applicant but this shall not be done in the case of an application for permit for a short route. Similarly in regard to 'A', marks cannot be awarded on the basis of sector or residential qualification in the case of an application for permit for a short route. The fact that marks cannot be so awarded may not take the operational experience out of the enumerated category of factors to be taken into consideration under Section 47(1). It is necessary to consider the preferentialtreatment contemplated for a new entrant. Sub-rule (3) (a) states that subject to Sub-rule (2), other things being equal, preference may be given to new entrants in regard to application for permit for short routes. As between a medium operator and a new entrant, certainly all other things cannot be equal. There may be a new entrant who has no operational experience at all. There may be a new entrant who has some operational experience but has no sector qualification or the like. There may be a new entrant who has operational experience (by way of operation on the basis of temporary permit) as well as sector qualification. The new entrants would themselves fall under several categories as I have endeavoured to show. It is for that reason that Sub-rule (3)(a) of Rule 177-A uses the expression 'other things being equal'. The overriding principle behind Sub-rule (3)(a) is that a new entrant must be preferred in regard to a short route. The preference contemplated in favour of a new entrant cannot be rendered illusory by the operational experience of a medium operator. At the same time the statutory authority cannot totally ignore the provision in Clause (c) of Section 47(1) of the Act. Whether any weight is to be attached or what weight has to be attached to operational experience when the person having such experience is confronting the claim of a totally new entrant, a new entrant with some experience, a new entrant with certain other qualifications, is a matter for the statutory authority to decide in the light of the facts and circumstances of each case.

6. Learned counsel for the petitioner has referred me to certain decisions of this Court,. namely, Vypeen Transport Corporation (P) Ltd. v. State Transport Appellate Tribunal, Trichur 1960 Ker LT 1058 : (AIR 1961 Ker 77), M. V. Joseph v. Senapathi, 1970 Ker LT 1102 and two unreported judgments. I do not understand these decisions as laying down any different principle. In 1960 Ker LT 1058 : (AIR 1961 Ker 77) it is observed that the interests of the public and the advantages to it of the service to be provided are very, if not the most, important factors to be taken into consideration in the matter of granting or refusing to grant a permit. In deciding what would be in the interests of the public, generally two of the factors that may arise for consideration are, firstly, experience in operating the service, and secondly, better facilities for the operation of the bus service. It is not clear from the judgment whether thecontest in that case was in regard to a short route. The observations are only general incharacter and have no specificity with reference to a contest between a new entrant and a medium operator. In 1970 Ker LT 1102, in paragraph 9 there is an observation that once a permanent need is found, a temporary need pending the grant of pucca permit would necessarily follow, and operation on the route on a temporary permit would be a qualification for a pucca permit. This also is a general observation, evidently made in the context of Clause (c) of Section 47(1) of the Motor Vehicles Act. It has not been made in the context of conflicting claims between a new entrant and a medium operator with reference to a short route.

7. Ext. P. 8 is a copy of the judgment of a learned Single Judge of this Court in O. P. Nos. 2383/7,9 and 3320/79. In paragraph 7 of the judgment it has been observed that looking at Rule 177-A one may say that experience in the industry or on the route, residence, availability of a workshop and an office are some of the qualifications which could ordinarily be taken note of. But in the case of a short route and a new entrant, the relevance is again limited. It may be in the public interest to suggest that short routes should ordinarily be earmarked for new entrants, unless there are other compelling circumstances. These observations have been made with specific reference to the claim of a new entrant. What the learned Judge said was not that the operational experience even as against a new entrant is of no relevance at all, but that the relevance is limited. Writ Appeal No. 302/82 filed against that judgment has been dismissed as seen from a copy of the judgment Ext. p. 9. In this judgment also preference given to a new entrant in regard to a short route under Sub-rule (3) of Rule 177-A has been taken note of and on that basis the court declined to interfere with the order of the learned single Judge. In view of what is stated above, I am not able to agree that the above decisions have laid down anything different from what is gatherable from the provisions of the Act and the Rules and adverted to above.

8. In the light of the provisions in Section 47(1) and in particular Clause (c) thereof, it cannot be said that operational experience is wholly irrelevant or could be ignored in all cases and in all circumstances. It is a relevant qualification, the weight to be attached to which is a matter dependant on the facts and circumstances of the case. When thisqualification is set up in confrontation between a medium operator and a new entrant in regard to a permit for a short route, the weight to be attached is limited. The statutory authority has to bear in mind that ordinarily short routes should be earmarked for new entrants, unless there are other compelling circumstances.

In these circumstances I am unable to hold that any interference with the judgment of the Tribunal is called for. The original petition is therefore dismissed, but in the circumstances without costs.